Muhammed Asharaf and Muhammed Rafi v. Sofia Abdul Kader

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** ## **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **TUESDAY, THE 21[ST] DAY OF JUNE 2022 / 31ST JYAISHTA, 1944** **R.C.REV.NO. 108 OF 2020** **AGAINST THE JUDGMENT DATED 13.02.2019 IN R.C.A.NO.36 OF 2017 OF THE RENT CONTROL APPELLATE AUTHORITY (DISTRICT JUDGE), ALAPPUZHA AND THE ORDER DATED 31.07.2017 IN R.C.P.NO.50 OF 2015 OF THE RENT CONTROL COURT (MUNSIFF), ALAPPUZHA** ## **REVISION PETITIONERS:** **1 MUHAMMED ASHARAF AGED 36 YEARS, S/O.CHEKKUTTY, SHOP NO.16/18A, 16/18F AND 16/338, BEST BAKERY SPRING COMPLEX, MANANCHERY PANCHAYAT, ALAPPUZHA, RESIDING AT PADUYOOR, PEEDIYAKKAL, MUNNIYOOR.P.O., MUNNIYOOR VILLAGE, MALAPPURAM-676311.** - **2 MUHAMMED RAFI AGED 33 YEARS, S/O.ALAVI, SHOP NO.MP.NO.16/18F AND 16/338, BEST BAKERY SPRING COMPLEX, MANANCHERY PANCHAYAT, ALAPPUZHA-688538.** **BY ADVS. K.S.HARIHARAPUTHRAN SMT.BHANU THILAK** ## **RESPONDENT:** **SOFIA ABDUL KADER** **AGED 48 YEARS, W/O.ABDUL KADER, SPRING VILLAGE, MANANCHERY.P.O., MANNACHERY VILLAGE, ALAPPUZHA-688538.** **BY ADVS. SRI.A.T.ANILKUMAR SMT.V.SHYLAJA** 2 R.C.Rev.No.108 of 2020 **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 27.05.2022, THE COURT ON 21.06.2022 DELIVERED THE FOLLOWING:** 3 R.C.Rev.No.108 of 2020 ## **O R D E R** ## Ajithkumar, J. The respondents-tenants in R.C.P.No.50 of 2015 of the Rent Control Court (Munsiff), Alappuzha, are the revision petitioners. The respondent herein-landlady filed the R.C.P. seeking eviction of the petitioners under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. As per the order dated 31.07.2017, the Rent Control Court dismissed the R.C.P. The respondent has preferred an appeal under Section 18(1)(b) of the Act. The Rent Control Appellate Authority (District Judge), Alappuzha, allowed that appeal, R.C.A.No.36 of 2017, as per judgment dated 13.02.2019. This Revision has been filed under Section 20 of the Act challenging the said judgment. 2. On 23.07.2020, this Court admitted the Revision to file. The order of eviction was stayed initially for a period of three months. The order of stay has been extended from time to time and is in force. 3. Heard the learned counsel appearing for the petitioners and the learned counsel appearing for the respondent. 4. The petition schedule premises is three shop rooms and a hind side building. These three rooms are part of a larger 4 ## R.C.Rev.No.108 of 2020 building, having a few other rooms as well. Son of the respondent Sri.Ansar, who is a Graduate in B.B.A., is unemployed. He with the support of the respondent wants to start a bakery in the petition schedule premises. Since no other room or building suitable for that purpose is available with the respondent, and her son is dependent on her, eviction of the petitioners was demanded under Section 11(3) of the Act. The petitioners filed a counter statement contending that Sri.Ansar has other businesses and sources of income, and therefore, he did not want to start a business as proposed. There are several other rooms remaining vacant in the building, which is a three-storied one. Without occupying any of the said rooms, demand of the respondent for eviction of the petitioners was without any bona fides. Several rooms in the building in question and about 20 rooms in another building owned by her are remaining vacant. The petitioners further contended that they are depending for their livelihood solely on the income derived from the bakery business conducted by them in the petition schedule premises and no other suitable building is available in the locality to shift their business. 5. The Rent Control Court recorded oral evidence of PW1, the husband and power of attorney of the landlady, PW2, son 5 R.C.Rev.No.108 of 2020 Sri.Ansar and DW1, the 1[st] petitioner. Exts.A1 to A8, C1, C1(a) and X1 to X3 were marked. After considering the evidence, the Rent Control Court found that the need urged by the respondent was bona fide. However, a finding against the respondent was rendered under the first proviso to Section 11(3) of the Act that there were vacant rooms in the possession of the respondent and the reasons offered for not occupying the said rooms were not satisfactory. Finding the second proviso also in favour of the petitioners, the Rent Control Court found that the petitioners were entitled to get an order of eviction under Section 11(3) of the Act. Resultantly, the rent control petition was dismissed. 6. The Appellate Authority after re-appreciation of evidence, concurred with the finding of the Rent Control Court with respect to the bona fide need. As regards the first proviso and also the second proviso to Section 11(3) of the Act, the Appellate Authority took a different view and the findings of the Rent Control Court were reversed. Accordingly, the appeal was allowed and the petitioners were directed to surrender vacant possession of the petition schedule premises to the respondent within 30 days of that judgment. 7. The learned counsel appearing for the petitioners raised 6 ## R.C.Rev.No.108 of 2020 multi-pronged contentions to assail the order of eviction. It is contended that there is no pleading that PW2 is a dependent of the respondent-landlady, and availability of vacant rooms on the ground floor as well as the first floor of the building is established, but the respondent did not offer any acceptable explanation for not occupying the same. The further contention is that the evidence regarding the second proviso to Section 11(3) of the Act let in by the petitioners was cogent and sufficient, but the same was illegally dispelled by the Appellate Authority. 8. The learned counsel appearing for the respondent, on the other hand, would submit that PW2 being the son, it is quite improper to say that he is not a dependent of the landlady. The pleadings are to be read as a whole and in such a reading, it can certainly be seen that the need is that of the landlady itself, and pleadings in that regard is sufficient. It is also his contention that if the Commissioner's report, Ext.C1, is understood in the light of the oral testimony of PW1 and also RW1, the finding can only be that no vacant room is available in the building. PW1 convincingly deposed that the petitioners have another business in the nearby locality and the same was supported by the documents contained in Ext.X1. The non-availability of other buildings in the locality was not 7 R.C.Rev.No.108 of 2020 proved from the evidence on record. Pointing out those aspects, the learned counsel supported the findings rendered by the Appellate Authority. 9. PW1 deposed that his son, PW2 used to help and involve in the jewelry business run by him, but PW2 has no independent business or employment. His son, PW2, completed his B.B.A. Degree and remains unemployed. In these circumstances, it is absolutely necessary for him to start a business of his own. It was under the said circumstances, he decided to start a bakery business in the petition schedule premises. PW2 also deposed in detail regarding his desire to start such a business. His father and other members of the family have business activities, in which he also used to involve. The suggestion that he was conducting the jewelry in a room in the same building was categorically denied by him. He explained that he used to go and help his brother in the business, but he had no stake in that. In the light of the said evidence, the authorities below found that the need urged by the respondent was bona fide. 10. Section 11 of the Act deals with eviction of tenants. As per Section 11(1), notwithstanding anything to the contrary contained in any other law or contract a tenant shall not be evicted, 8 R.C.Rev.No.108 of 2020 whether in execution of a decree or otherwise, except in accordance with the provisions of this Act. As per Section 11(3) of the Act, a landlord may apply to the Rent Control Court, for an order directing the tenant to put the landlord in possession of the building if he bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him. As per the first proviso to Section 11(3), the Rent Control Court shall not give any such direction if the landlord has another building of his own in his possession in the same city, town or village except where the Rent Control Court is satisfied that for special reasons, in any particular case it will be just and proper to do so. As per the second proviso to Section 11(3), the Rent Control Court shall not give any direction to a tenant to put the landlord in possession, if such tenant is depending for his livelihood mainly on the income derived from any trade or business carried on in such building and there is no other suitable building available in the locality for such person to carry on such trade or business. 11. In **Adil Jamshed Frenchman v. Sardur Dastur Schools Trust [(2005) 2 SCC 476]** the Apex Court reiterated that, as laid down in **Shiv Samp Gupta v. Dr. Mahesh Chand Gupta [(1999) 6 SCC 222]** a bona fide requirement must be an 9 R.C.Rev.No.108 of 2020 outcome of a sincere and honest desire in contradistinction with a mere pretext for evicting the tenant on the part of the landlord claiming to occupy the premises for himself or for any member of the family which would entitle the landlord to seek ejectment of the tenant. The question to be asked by a judge of facts by placing himself in the place of the landlord is whether in the given facts proved by the material on record the need to occupy the premises can be said to be natural, real, sincere and honest. The concept of bona fide need or genuine requirement needs a practical approach instructed by the realities of life. As reiterated in **Deena Nath v. Pooran Lal [(2001) 5 SCC 705]** bona fide requirement has to be distinguished from a mere whim or fanciful desire. The bona fide requirement is in praesenti and must be manifested in actual need so as to convince the court that it is not a mere fanciful or whimsical desire. 12. In **Ammu v. Nafeesa [2015 (5) KHC 718]** a Division Bench of this Court held that, it is a settled proposition of law that the need put forward by the landlord has to be examined on the presumption that the same is a genuine one, in the absence of any materials to the contra. In **Gireeshbabu T. P. v. Jameela and others [2021 (5) KHC SN 30]** this Court reiterated that in order 10 ## R.C.Rev.No.108 of 2020 to satisfy the requirement of Section 11(3) of the Act, a bona fide need must be an outcome of a sincere and honest desire of the landlord in contradistinction with a mere pretext on the part of the landlord for evicting the tenant, claiming to occupy the premises for himself or for any member of his family dependent on him. Once, on the basis of the materials on record, the landlord has succeeded in showing that the need to occupy the premises is natural, real, sincere and honest, and not a ruse to evict the tenant from the said premises, the landlord will certainly be entitled for an order of eviction under Section 11(3) of the Act, of course, subject to the first and second provisos to Section 11(3) of the Act. 13. In the light of the principles of law laid down in the aforesaid decisions, the evidence tendered by the respondent certainly would probabilise that the need urged by her is honest, genuine and sincere. The tenants in a premises, which fetch fairly a good rent, would not be asked to vacate by an ordinarily prudent landlord unless he can utilize it profitably. PW2 remains unemployed is established. Therefore, there is no reason to doubt the bona fides of the need urged. In the circumstances, we find that the conclusion arrived at by the authorities below in respect of the need urged by the respondent is quite sound and tenable. 11 R.C.Rev.No.108 of 2020 14. The learned counsel for the petitioners placed reliance on **Thomas N.T. v. Suresh Pai [2020 (1) KHC 933]** to contend that non-examination of the landlady is fatal to the respondent. In that case, this Court considered a similar situation. In that case, the power of attorney of the landlord filed the Rent Control Petition. The landlord was not available at the station. The need urged was that the landlord wanted to start a business in the petition schedule building. The power of attorney alone gave evidence in court. In the said fact situation, this Court held that non-examination of the landlord was fatal to his case. The said principle has no application here. The landlady herself had filed the petition. PW2, the person for whom also the vacant rooms are required, has been examined as a witness. PW1 and PW2 gave evidence regarding the need. In those circumstances, the non-examination of the landlady does not assume any importance in this case. 15. The next contention of the petitioners is that the respondent has vacant rooms in the same building, and therefore, she is not entitled to claim eviction owing to the provisions of the first proviso to Section 11(3) of the Act. It is pointed out that from the oral testimonies of PW1 and RW1 together with Ext.C1 report of the commissioner, the availability of vacant rooms is established. 12 R.C.Rev.No.108 of 2020 PW1 admitted that on the first floor of the building, four rooms are lying vacant. What the Commissioner reported vide Ext.C1 is that there are six rooms on the first floor and at least four of them are lying vacant. The version of RW1 also is to the effect that not only the said rooms but also a few other rooms on the ground floor, including the rooms earlier occupied by Mirza Hotel are now vacant. 16. After analyzing the entire evidence in detail, the Appellate Authority came to the conclusion that four rooms on the first floor are lying vacant. Two other rooms on the first floor are occupied by others. As regards the rooms where Mirza Hotel was being functioned, the finding was that the tenants there did not surrender vacant possession yet. DW2 is one of the two tenants, who conducted Mirza Hotel. He deposed before the court that the hotel has not been functioning, but the rooms were not surrendered to the landlord. It is his specific version that the keys of the said rooms are with them. In that situation, it cannot be said that the said rooms are vacant or possession of the same was handed over to the landlady. 17. The categoric version of PW1 is that the four rooms on the first floor are not yet assessed by the Panchayat, and therefore, the same cannot be occupied. It has come out that there were 13 R.C.Rev.No.108 of 2020 disputes regarding the assessment of the said rooms and also the incomplete portion of the second floor of the building between the respondent and the Panchayat. There is no reason to disbelieve the said version of PW1. Therefore, the availability of vacant rooms with her, which are suitable for starting a business proposed by the respondent and PW2 is not established. 18. The proposal of the respondent is to start a bakery business for PW2 with her assistance. The rooms on the first floor are remaining vacant, but for want of authorisation and assessment by the Panchayat, no business can be run there. Of course, the landlord seemed to have taken no steps to get the rooms assessed so far. The reason is unknown. Be that as it may, the said rooms being on the first floor of the building, suitability of the same for a bakery business is a question. It cannot be said that a bakery business can be profitably conducted in the first floor rooms, especially when the place, which evidently is not in a busy place of the city. In the said circumstances, we hold that the special reasons shown by the landlady are sufficient and the finding of the Appellate Authority in that regard is sound. 19. Benefit of the second proviso to section 11(3) of the Act is claimed on the premises that both the petitioners are depending 14 R.C.Rev.No.108 of 2020 on the income derived from the bakery business in the petition schedule premises for their livelihood and also no other suitable building is available in the locality. An admission made by PW1 that the petitioners were depending for their livelihood on the income from the said bakery business, is highlighted by the petitioners to sustain their plea. Although PW1 stated so, his subsequent statement is to the effect that the 2[nd] petitioner has been conducting another bakery at Kaichoondi Junction, which is not far away. It is his definite version that he saw the 2[nd] petitioner controlling the business in that shop. PW1 used to have tea from that bakery and saw the mobile number of the 2[nd] petitioner exhibited in that shop. Ext.X1 was brought on record from the Municipality in order to show that the said business has been conducted by the petitioner. The name of the bakery in the petition schedule premises and the one at Kaichoondi is Best Bakery. The similarity in the name may not be a decisive factor. From Ext.X1 also it cannot be seen that either of the petitioners is a licencee. The Appellate Authority on finding that a copy of the driving license of the 2[nd] petitioner was found in Ext.X1 file, held that he may have a connection with the said Best Bakery. The learned counsel appearing for the petitioner would submit that the application for 15 ## R.C.Rev.No.108 of 2020 licence for the Best Bakery at Kaichoondi was submitted by one Abdul Basheer and it was he who has been conducting the bakery. The presence of a photocopy of 2[nd] petitioner's driving license alone is not enough to prove that he is conducting the bakery. 20. As per the second proviso to Section 11(3), the Rent Control Court shall not give any direction to a tenant to put the landlord in possession, if such tenant is depending for his livelihood mainly on the income derived from any trade or business carried on in such building and there is no other suitable building available in the locality for such person to carry on such trade or business. A Full Bench of this Court in **Francis v. Sreedevi Varassiar [2003** **(2) KLT 230]** held that it is for the tenant to prove both the limbs of the second proviso to Section 11(3) of the Act and that the tenant cannot insist that alternative accommodation should be similar to that of the tenanted premises in terms of the rate of rent and convenience. 21. In **Shahul Hameed v. Abdul Razak [2017 (1) KLT SN 37]** , a Division Bench of this Court held while deciding the proof or not of the first limb of the second proviso to Section 11(3) of the Act, the court is required to look forth evidence 16 ## R.C.Rev.No.108 of 2020 regarding approximate income from each source of the tenants business. In this case, DW1 deposed before the court that he as well as the 2[nd] petitioner has been depending on for their livelihood on the income being derived from the bakery business in the petition schedule premises. In the light of the definite version of PW1 that he used to see the 2[nd] petitioner managing the Best Bakery at Kaichoondi, it was obligatory on his part to come with evidence regarding his sources of income as well. No document, whatsoever, has been produced before the court regarding the petitioners' income from the business in the petition schedule premises. From the pleadings, it is obvious that the petitioners are conducting business and sharing profits therefrom. Naturally, there should be records regarding the same. In the absence of any such evidence, it is not possible to find that the petitioners have no other sources of income. Admission said to have been made by PW1 regarding their income, in the above circumstances, does not help them to discharge the burden of proof pertaining to the first limb of the second proviso. 22. As regards the second limb of the second proviso to 17 R.C.Rev.No.108 of 2020 Section 11(3) of the Act, oral evidence of DW1 alone has been brought on record. The Commissioner appointed in the case has not ascertained the availability of other vacant rooms in the locality. In the absence of any other evidence, it cannot be said that the petitioners discharged their burden in this regard also. 23. Having considered the aforesaid evidence in detail, the Appellate Authority reversed the findings of the Rent Control Court. We do not find any ground to interfere with the findings of the Appellate Authority in exercise of the powers under Section 20 of the Act. 24. In **Rukmini Amma Saradamma v. Kallyani Sulochana [(1993) 1 SCC 499]** , the scope of revisional powers of the High Court under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 came up for consideration before the Three-Judge Bench of the Apex Court. While considering whether the High Court could have re-appreciated the entire evidence, the Apex Court held that even the wider language of Section 20 of the Act cannot enable the High Court to act as a first or a second court of appeal. Otherwise, the distinction between appellate and revisional jurisdiction will get obliterated. Hence, the High Court 18 ## R.C.Rev.No.108 of 2020 was not right in re-appreciating the entire evidence both oral or documentary in the light of the Commissioner's report. The High Court had travelled far beyond the revisional jurisdiction. Even by the presence of the word ‘propriety’ it cannot mean that there could be a re-appreciation of evidence. Of course, the revisional court can come to a different conclusion but not on a re-appreciation of evidence; on the contrary, by confining itself to legality, regularity and propriety of the order impugned before it. 25. In **Hindustan Petroleum Corporation Limited v. Dilbahar Singh [(2014) 9 SCC 78]** a Five-Judge Bench of the Apex Court considered the revisional powers of the High Court under Rent Acts operating in different States. After referring to the law laid down in **Rukmini Amma Saradamma** the Apex Court reiterated that even the wider language of Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 does not enable the High Court to act as a first or a second court of appeal. The Constitution Bench agreed with the view of the Three-Judge Bench in **Rukmini Amma Saradamma** that the word ‘propriety’ does not confer power upon the High Court to re-appreciate evidence to come to a different conclusion, but its consideration of evidence is confined to find out legality, regularity and propriety of the order 19 R.C.Rev.No.108 of 2020 impugned before it. 26. Viewed in the light of the aforesaid decisions, we find no reason to interfere with the findings in the judgment of the Appellate Authority on the ground of illegality, irregularity or impropriety. Hence this Revision Petition fails. We, accordingly, dismiss it. 27. At the time of pronouncement of the Order, the learned counsel for the petitioners has made a request to afford six months' time for vacating the petition schedule shop rooms pointing out the difficulty in finding out another room and making necessary arrangements for shifting the business. 28. Having considered all the aspects, we deem it appropriate to grant six months’ time to surrender vacant possession of the petition schedule shop rooms, subject to the following conditions: - (i) The respondents-tenants in the Rent Control Petition shall file an affidavit before the Rent Control Court or the Execution Court, as the case may be, within two weeks from the date of receipt of a certified copy of this order, expressing an unconditional undertaking that they will surrender vacant possession of the petition schedule shop rooms to the petitioner-landlady within six months from the date of this 20 R.C.Rev.No.108 of 2020 order and that, they shall not induct third parties into possession of the petition schedule shop rooms and further they shall conduct any business in the petition schedule shop rooms only on the strength of a valid licence/permission/ consent issued by the local authority/statutory authorities; - (ii) The respondents-tenants in the Rent Control Petition shall deposit the entire arrears of rent as on date, if any, before the Rent Control Court or the Execution Court, as the case may be, within four weeks from the date of receipt of a certified copy of this order, and shall continue to pay rent for every succeeding months, without any default; - (iii) Needless to say, in the event of the respondents-tenants in the Rent Control Petition failing to comply with any one of the conditions stated above, the time limit granted by this order to surrender vacant possession of the petition schedule shop rooms will stand cancelled automatically and the petitionerlandlady will be at liberty to proceed with the execution of the order of eviction. Sd/- ## **ANIL K.NARENDRAN JUDGE** Sd/- ## **P.G. AJITHKUMAR JUDGE** dkr